Freedom of Information and Brian Burke meet up again

The Crime and Conduct Commission in Western Australia released a report (see under publications) last Friday on alleged misconduct by the Director General of the Department of Health, Dr. Fong (who resigned when the report was released) arising from his claims that he had no relationship with former Premier Brian Burke. The Commission recommended consideration be given to disciplinary action against Fong for misleading the minister about the relationship.

One of the main issues was that in response to an FOI application Fong’s initial advice to the FOI staff was that he had received no emails from Burke. As the report reveals the Department IT people subsequently found 9 but only with headers and no text. The CCC having seized Burke's computer identified 33 emails between him and Fong, most initiated by Burke. Some sought Fong's assistance in matters on behalf of Burke clients. Others included an email from Fong asking assistance from Burke to pay for a dinner, and advice from Burke regarding Fong’s employment at Health, and how to handle the media.

The report includes detail about record keeping in the Department of Health and major shortcomings in relation to the retention of emails. The TRIM system (also used widely in the public sector elsewhere in Australia) "is primarily a communication system and is not designed as an electronic records keeping system". Responsibility for ensuring that emails are kept rests with the officer dealing with the matter, with important emails to be downloaded and copied on the file.

"Retention of each individual employee’s emails is limited by the storage limit allocated. Full backups of the exchange information databases, system software and system transactions are run every evening and a three month tape rotation cycle is currently employed by DOH. These tapes are overwritten on a three monthly cycle. Therefore the only records in existence of email content beyond a three month period would be contained in the individual employee’s inbox, sent items folder or copied to a personal folder or stored on disc or on their personal
drive".

One of the Commission's recommendations is that the Department of Premier and Cabinet and the State Records Commission consider a whole of government standard in relation to agencies' archival processes and retention of email communications.

The retention of digital records is a major issue in record keeping circles and overseas - the White House was reported recently to have not been able to locate 5 million emails, and only started back up tapes in 2003.

All this has important implications of course if accountability mechanisms, particularly Freedom of Information laws are to work as intended.

Interesting times as they say.